In this week’s review, news about the OTP leave to appeal the Afghanistan decision, and its separate and concurring opinion, the ICC communication on EU migrant deaths, inquiry on killing and disappearance of indigenous women in Canada, and more.
ICC OTP request leave to appeal PTC decision on Afghanistan investigation
The ICC Prosecution (OTP) has filed a request for leave to appeal the Pre-Trial Chamber’s (PTC) decision denying the Prosecution’s earlier request to move from the Preliminary Examination phase on possible crimes under the Rome Statute committed in Afghanistan to an official investigation. On 12 April 2019, the ICC Pre Trial Chamber unanimously rejected the Prosecutor’s request to open an investigation under Article 15(3) of the Rome Statute. The Chamber decided that ‘an investigation into the situation in Afghanistan at this stage would not be in the interest of justice’. The main concern being that any investigation may ultimately be inconclusive. This decision was despite the Chamber also finding that there was a reasonable basis to believe the ‘most serious crimes’ within the Courts jurisdiction occurred, and that any case concerning those crimes would be admissible. The OTP sought leave to appeal the PTC’s decision based on three grounds. The first ground was the Pre-Trial Chamber’s assessment of articles 15(4) and 53(1)(c) as they relate to the interest of justice. The second was the PTC’s exercise of discretion in relation to those provisions, and third, the PTC’s understanding of the scope of any investigation it may authorise in light of article 15. The Prosecutor argued that the appeal was not a simple matter of disagreement but came down to the core aim of the Rome Statute to ‘put an end to impunity’ and ensure that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’. (ICC-PTC).
Separate judgment on ICC Afghanistan decision released
The Concurrent and Separate Opinion of Judge Antoine Kesia-Mbe Mindua has been released, following the decision of the Pre-Trial Chamber of the International Criminal Court (ICC) to reject the Prosecutor’s request to open an investigation into Afghanistan,. On 12 April 2019, the Chamber unanimously rejected the November 2017 request by Prosecutor Fatou Bensouda to investigate alleged crimes against humanity by the Taliban and alleged war crimes by Afghan National Security Forces and the US military and Central Intelligence Agency.
Judge Mindua’s decision generally concurs with that of the majority decision that, while the jurisdiction and admissibility requirements under the Rome Statute had been met, the current situation in Afghanistan was such as to “make the prospects of a successful investigation extremely limited.” However, Judge Mindua made separate comments on the scope of an investigation once it had been authorised, and the notion of “interests of justice” under the framework of Article 15 of the Rome Statute. Regarding the first issue, he stated that in the event that the opening of an investigation is authorised by the Chamber its scope should not be strictly limited to the incidents outlined in the original request. The Prosecutor, in the process of conducting an investigation authorised by the Chamber, may discover new incidents. Regarding the definition of “interests of justice,” Judge Mindua found that the Pre-Trial Chamber in making its determination should not be confined to only traditionally understood legal factors, but to a range of factors such as the security on the ground and the degree of state cooperation. He characterised these factors as being part of the legal determination. (Decision)
ICC communication to prosecute EU over migrant deaths
A legal submission has been filed with the ICC on 3 June calling for the court to prosecute the European Union and its member states for the death of migrants who drowned in the Mediterranean. It calls for punitive action over the EU’s deterrence-based migration policy after 2014, which allegedly “intended to sacrifice the lives of migrants in distress at sea, with the sole objective of dissuading others in similar situation from seeking safe haven in Europe”. It is claimed that that there is sufficient evidence to establish criminal liability within the jurisdiction of the ICC for “causing the death of thousands of human beings per year, the refoulement [forcible return] of tens of thousands migrants attempting to flee Libya and the subsequent commission of murder, deportation, imprisonment, enslavement, torture, rape, persecution and other inhuman acts against them”. However, the submission does not identify individual accused. The submission alleges that EU migration policies caused the deaths of “thousands civilians per year in the past five years and produced about 40,000 victims of crimes within the jurisdiction of the court in the past three years.” The submission was filed by Juan Branco, who formerly worked at the ICC and at France’s foreign affairs ministry, and Omer Shatz, an Israeli lawyer who teaches at Sciences Po university in Paris. (The Guardian)
Canadian National Inquiry finds that killings and disappearances of indigenous women amount to genocide
A report issued by the Canadian National Inquiry into Missing and Murdered Indigenous Women and Girls found that the killings, disappearances of indigenous girls and women amount to race-based genocide of indigenous peoples. The government-backed inquiry was launched in 2016 and was followed by three years of extensive inquiries, research and hearings of witnesses. Extensive research has revealed the disproportionate violence faced by First Nations, Inuit and Métis indigenous women and girls in Canada, especially when compared to the rates of homicide faced by other female victims belonging to other demographic groups. Other research found that statistically, between 2001 and 2015, indigenous women and girls made up to 25% of all female homicide victims in Canada. Canada was found to be complicit in these atrocities, due to its purported inaction and “deep-rooted” colonialism. Families of the victims and survivors complained that the court proceedings were too often inadequate, unjust and retraumatizing.
The document with over a thousand of pages included around 200 recommendations to the government. Justin Trudeau, Canada’s Prime Minister pledged that the government will strive to implement them. Notably, the Report recommended that the federal government create an independent mechanism for reporting annually on progress made in implementing the recommendations. Recommendations include the empowerment of indigenous women within communities and their inclusion in civil services. Police patrols should be set up in the indigenous community areas and calls were made to have some of the killings of Indigenous women classified as first-degree murder. Inclusion of indigenous languages as an official languages was also mentioned among the recommendations. Trudeau’s omission of the word “genocide” in his speech sparked controversy. Romeo Dallaire, former UNAMIR force commander during the 1994 genocide in Rwanda also disagreed with the use of genocide in this instance, differentiating it from the deliberate acts to exterminate Tutsis in Rwanda in 1994. (MMIWG, The Guardian, BBC, NY Times, CBC)
Prosecutor Pulled Off Trial of US Navy Seal Following Allegations of Misconduct
Commander Christopher Czaplak, the Lead Prosecutor in the court-martial of Navy SEAL Edward Gallagher, has been removed from the trial following allegations he had arranged to secretly track emails of defence lawyers and a journalist covering the case. The order removing the Prosecutor is under seal, but it reportedly stated that the defendant’s right to the due process required the Prosecutor to be removed. However, the prosecution argues that the tracking software could not read the contents of emails, and was only used to investigate how confidential documents regarding the trial were being leaked to the public. It is not yet clear whether the trial will go ahead next week as scheduled, or will need to be postponed to allow another Prosecutor to step in. Gallagher is accused of war crimes in connection with his service in Iraq, including shooting an old man and young girl with a sniper rifle and stabbing a captive, injured Islamic State fighter to death. (NY Times)
Russia Claims ICJ Lacks Jurisdiction in Ukraine Case on Separatist Support
Russia has claimed that the International Court of Justice (ICJ) does not have jurisdiction to hear Ukraine’s case against Russia for seizing the Crimean peninsula and supporting violent separatists in Ukraine. The case against Russia, which was filed in early 2017, includes allegations of financing terrorist activity and violating the International Convention on the Elimination of All Forms of Racial Discrimination. While the ICJ has made a provisional ruling calling for a halt of racial discrimination against Crimean Tatars and ethnic Ukrainians in Russian-occupied Crimea, they have not made any orders regarding the allegations of financing terrorist activity. (Radio Free Europe)
Federal Authorities Raid Australian Broadcasting Corporation Over Leaks on Possible War Crimes in Afghanistan
The Australian Federal Police have raided the offices of the Australian Broadcasting Corporation (ABC) in connection with a 2017 story, based on leaked military documents, that indicated Australia’s military were being investigated for possible war crimes in Afghanistan. The warrant for the raid was based on a 1914 Australian law, which prohibits officials from disclosing secret information. ABC Managing Director David Anderson has raised concerns about the implications of the raid for ‘freedom of the press and proper public scrutiny of national security and defence matters’. No arrests were made in connection with the raid. (Washington Post)
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